Citation Nr: 9808218
Decision Date: 03/19/98 Archive Date: 04/02/98
DOCKET NO. 96-07 872 ) DATE
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On appeal received from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Wichita, Kansas
THE ISSUE
Entitlement to compensation pursuant to 38 U.S.C.A. § 1151
(West 1991 & Supp. 1997) for loss of visual acuity in the
right eye, status post enucleation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Mark D. Chestnutt, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1958 to April
1960.
This appeal stems from a July 1995 rating decision of the
Boston, Massachusetts, RO that denied compensation pursuant
to 38 U.S.C.A. § 1151 for loss of visual acuity in the right
eye.
The Board of Veterans’ Appeals (Board) notes that although
the veteran had originally requested a hearing before a
traveling section of the Board on the February 1996 VA Form
9, a January 1998 report of contact indicates that the
veteran cancelled the hearing request.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that treatments he received
from the VA for his right eye caused a permanent loss of
visual acuity. He believes that one or more laser treatments
resulted in this loss of vision. He has vividly described
the pain and pressure he experienced during his course of
therapy.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the veteran has not met his
initial burden of submitting evidence to justify a belief by
a fair and impartial individual that his claim for
entitlement to compensation for loss of visual acuity in the
right eye, status post enucleation, is well grounded.
FINDINGS OF FACT
There is not a reasonable possibility of a valid claim
concerning whether the veteran’s loss of visual acuity in the
right eye resulted from, or was aggravated by, VA
hospitalization, medical or surgical treatment.
CONCLUSION OF LAW
The veteran has not submitted a well-grounded claim for
entitlement to compensation for loss of visual acuity in the
right eye. 38 U.S.C.A. §§ 1151, 5107 (West 1991 & Supp.
1997); 38 C.F.R. §§ 3.358, 3.800 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question to be answered in this case is whether
the veteran has presented evidence of a well-grounded claim;
that is, a claim which is plausible. If he has not presented
a well-grounded claim, his appeal must fail. In such a case,
there is no duty to assist him further in the development of
such claim because such additional development would be
futile. 38 U.S.C.A. § 5107. As will be explained below, we
find that the veteran’s claim is not well grounded. See
Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
VA medical records from November 1989 to July 1993 have been
obtained and associated with the claims file. A March 1990
entry notes that the veteran had had insulin-dependent
diabetes mellitus for ten years, and that he had background
diabetic retinopathy, more so in the right eye than the left.
A December 1990 entry indicates that proliferative diabetic
retinopathy had been present since March 1990. Right retinal
hemorrhages were noted in November 1990.
On October 7, 1991 the veteran presented with a loss of
vision in the right eye that he reported had begun six days
earlier. Probable diabetic retinopathy was noted. He was
apparently to undergo panretinal photocoagulation [laser
treatment]. An associated medical certificate from that day,
however, indicates that the veteran was told that his
condition must become worse before such treatment would be
given. There was a diagnosis of a questionable retinal
hemorrhage versus a detached retina of the right eye.
Two consent forms from November 1991 shows that the veteran
agreed to undergo laser treatment, and other documentation in
the record indicates that the veteran underwent panretinal
photocoagulation twice that month.
On December 10, 1991 the veteran presented for emergency
treatment, having experienced a sudden loss of visual acuity
that had begun six days earlier. Retinal detachment of the
right eye with areas of leakage and ischemia were noted.
The veteran was hospitalized by the VA from December 16 to
December 20, 1991 with a diagnosis of proliferative diabetic
retinopathy with tractional retinal detachment, as well as
adult onset diabetes mellitus and hypertension. He underwent
a right pars plana vitrectomy with epi-retinal membrane
peeling and a gas-fluid exchange. He also underwent an
“endolaser” procedure. An associated consent form
indicates that the veteran had agreed to undergo, inter alia,
removal of blood from the eye with laser attachment of
retina. A December 19 entry notes that there was a posterior
subcapsular cataract in the right eye and a moderate
elevation of intraocular pressure. Discharge medications
included cyclogyl, Pred-Forte®, gentamicin, Timoptic®, and
Neptazane®.
On December 23, 1991, the veteran complained of pain in the
right eye, and it was noted that he was status post for pars
plana vitrectomy and traction retinal detachment, stable,
with increased intraocular pressure which was the same as the
previous week. On December 31, 1991, the veteran complained
of increased pain in the right eye, although vision was
reportedly the same. His prior surgical history was again
noted and he was found to have an increased anterior chamber
reaction.
A January 8, 1992 entry, noting the veteran’s proliferative
diabetic retinopathy, indicates that following the December
1991 surgery, there had been postoperative hyphema and
postoperative increased intraocular pressure. The veteran
reported, photophobia, but his eye pain was decreasing and
there was visual improvement.
A January 30, 1992 clinical note indicates that the veteran
had had marked improvement postoperatively.
On February 12, 1992 the veteran indicated that he had had
steady improvement following the December 1991 surgery, until
the previous day when his visual acuity in the right eye
severely decreased. The impression was of a likely
rhegmatogenous retinal detachment of the right eye, with a
history of fractional retinal detachment. The plan was for a
scleral buckling and gas-fluid exchange.
A February 16, 1992 entry indicates that intraocular pressure
was under control, but that his retinal status was uncertain.
The veteran was hospitalized by the VA from February 12 to
February 20, 1992 with a diagnosis of rhegmatogenous retinal
detachment in the right eye. He underwent an emergent
scleral buckling with cryotherapy and drainage of subretinal
fluid of the right eye. An associated consent form indicates
that the veteran had agreed at the beginning of his
hospitalization to undergo repair of the retinal detachment
with buckle on the eye and gas injection. At discharge, the
veteran’s vision, pressure and external examination were
unchanged, except for the resolution of the mucoid discharge
and conjunctival chemosis. He was discharged in good
condition with medications including Pred-Forte® and
cyclosporin.
A March 14, 1992 record notes that there was very high
intraocular pressure secondary to a bubble. The veteran was
provided medication. A March 25, 1992 record notes elevated
intraocular pressure of the right eye, secondary to steroids.
A September 15, 1992 record shows that the veteran underwent
panretinal photocoagulation for his right eye.
On October 13, 1992, it was noted that the veteran had been
admitted to a VA hospital to undergo a cataract extraction of
the right eye. The hospitalization summary indicates that
the veteran had been experiencing a progressive, gradual
decrease in vision in the right eye over the past six months.
On October 13, the veteran was advised about the need for
surgery, and that the risks of surgery included a need for
further surgery, worsening of vision, total loss of vision,
and loss of the eye. The veteran, it was stated, freely
consented to the surgery. He ultimately underwent an
“uneventful” extracapsular cataract extraction. The
operative report indicates that the veteran also underwent a
posterior-chamber intraocular lens implantation in the right
eye.
A November 1992 postoperative note indicates that the
veteran’s condition was stable.
A December 3, 1992 record indicates that the veteran again
had decreased vision and was unable to see light. It was
indicated that the veteran had a recurrent retinal
detachment. A December 7, 1992 entry notes that the veteran
was called at his home after failing to report for an
appointment at the VA. He indicated that he did not want eye
surgery at that time. He stated that his blood pressure and
blood glucose were very high, and expressed pessimism about
any possible improvement with surgery. He was informed by a
treatment provider at the VA that the likelihood of regaining
his vision was less, the longer he delayed surgery. He was
encouraged to think over his decision to refuse surgery.
The veteran was hospitalized by the VA from December 25, 1992
to January 11, 1993. He was hospitalized for reasons
generally unrelated to his eye, but ophthalmological
evaluations were conducted during that time. Diagnoses
included right eye hyphema and neovascular glaucoma. A
December 29, 1992 treatment entry notes that the veteran was
blind in the right eye secondary to retinal detachment,
status post multiple surgeries. On December 31, a possible
neovascular glaucoma of the right eye was found. A December
31 entry notes that the veteran had retinal detachment of the
right eye, [status post] multiple procedures, with only light
perception, but that he had refused further surgery to the
eye. Another entry from that day indicates that no
intervention regarding the right eye was pursued during the
current hospitalization. One January 4, 1993 entry revealed
that the eye was red without drainage, and the sclera
appeared to have a small lesion. Another entry from that day
noted again noted possible neovascular glaucoma of the that
eye. At discharge his medications for the right eye included
prednisone, atropine and timolol.
A January 11, 1993 entry notes that the veteran had hyphema
and corneal edema of the right eye, and that he probably had
a persistent retinal detachment of the right eye, and
questionable rubeosis.
A VA clinical entry from on or about January 20, 1993 notes
chemosis and hyphema or a clot in the right eye. It was
stated that the veteran had had three retinal detachments
leading to rubeosis and hyphema, and this had also led to
increased intraocular pressure. It was stated that there
needed to be a decrease in intraocular pressure. Among the
options apparently considered were possible cryo[therapy]
and/or a pars plana vitrectomy. The veteran indicated that
he wanted a second opinion, but was made aware that he might
lose all vision. Iopadine® was prescribed, and the veteran
was to return the following day for treatment of his
intraocular pressure.
A VA clinical entry from on or about January 29, 1993 notes
that intraocular pressure was about 60 to 70 in the right
eye. The veteran refused additional treatment indicated that
he was seeking a second opinion. He was aware that he might
lose all vision in the right eye if nothing was done
immediately. He was also informed that the elevated
intraocular pressure could cause further loss of vision and
decrease his chances of any visual recovery. The veteran
refused anything but medical management.
The veteran filed his claim for compensation in April 1993.
In June 1993 the veteran was treated at the VA on the
complaint that his right eye was bleeding and had to be
“removed.” It was noted that he had had a detached retina
three times and had undergone laser treatment. The eye was
painful and swollen shut. A July 1993 record notes that the
veteran was by then status post for a right eye enucleation.
Pursuant to 38 U.S.C.A. § 1151, generally where any veteran
shall have suffered an injury, or an aggravation of an
injury, as the result of hospitalization, medical or surgical
treatment, not the result of the veteran’s own willful
misconduct, and such injury or aggravation results in
additional disability to such veteran, disability
compensation shall be awarded in the same manner as if such
disability were service connected. See also 38 C.F.R.
§ 3.800. In Gardner v. Derwinski, 1 Vet.App. 584 (1991),
aff’d sub nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir.
1993), aff’d, Brown v. Gardner, ___ U.S. ___, 115 S.Ct. 552
(1994) the United States Supreme Court held that fault of the
VA need not be shown as an element of recovery under
38 U.S.C.A. § 1151. Title 38 C.F.R. § 3.358, an implementing
regulation for 38 U.S.C.A. § 1151, has been revised to comply
with the Gardner decision.
The Board notes that effective October 1, 1997, 38 U.S.C.A.
§ 1151 was amended such that VA negligence would generally
have to be shown for a claimant to obtain compensation under
the statute. This amendment, however, does not apply to
cases filed prior to the effective date. Pub. L. No. 104-
204, § 422(a)-(c) (1996). As this claim was filed prior to
the effective date, the former statute must be applied. Cf.
Karnas v. Derwinski, 1 Vet.App. 308 (1991) (in the present
case, the former statute, which is discussed below, is more
favorable to the veteran). See also Dudnick v. Brown, 10
Vet.App. 79 (1997).
To obtain VA compensation, however, a current disability is
required. See Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992);
Cuevas v. Principi, 3 Vet.App. 542, 548 (1992) (in the direct
service-connection context). Further, such a disability in a
claim for 38 U.S.C.A. § 1151 benefits must be the result of
VA hospitalization, surgical or medical treatment; this is
essentially a “medical nexus” requirement. Cf. Lathan v.
Brown, 7 Vet.App. 359, 365 (1995); Grottveit v. Brown, 5
Vet.App. 91, 93 (1993); Caluza v. Brown, 7 Vet.App. 498
(1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir. 1996)
(medical nexus required in the direct service-connection
context). The medical nexus requirement for 38 U.S.C.A.
§ 1151 is a higher standard than what is required for direct
service connection. For the latter, generally a claimant
need only show that a disability had an onset in service;
under § 1151 however, a mere coincidental onset is not
enough--VA treatment must be shown to be a causal factor.
38 C.F.R. § 3.358(c)(1). Causality, therefore, must be shown
regardless of the “strict liability” standard in effect
under the more liberal version of the statute.
In this case the veteran has submitted no medical evidence to
make his claim plausible. He presented himself to the VA for
treatment of decreased visual acuity in the right eye, and
was treated for this condition. The evidence shows that the
right eye vision decreased because of his retinal detachment,
and that he was provided multiple surgeries and laser
treatments for this. No medical evidence demonstrates,
contrary to the veteran’s own assertions, that his right eye
visual acuity decreased due to VA treatment rather than the
underlying condition. While many surgeries and laser
treatments were provided, the record just as plausibly--if
not more so--demonstrates that these treatments may have
helped or delayed his eventual loss of the eye. There was,
for example, postoperative hyphema and increased intraocular
pressure following the December 1991 surgery, but subsequent
records also show decreasing eye pain and visual improvement.
There is no indication that the treatment itself led to a
permanent worsening of the veteran’s already-existing right
eye visual problems. His complaints of pain and pressure in
the eye do not amount to medical evidence that the treatment
caused the disability for which it was designed to prevent.
Moreover, the Board notes that the veteran began refusing
further treatment prior to his loss of the eye, and was
clearly warned of the danger of such a course of action.
The veteran is not a medical expert and is therefore not
qualified to proffer a medically competent opinion as to the
cause of any of his right eye problems or as to whether he
received appropriate care. Stadin v. Brown, 8 Vet.App. 280,
284 (1995); Robinette v. Brown, 8 Vet.App. 69 (1995). He has
not submitted any medical evidence linking VA
hospitalization, medical or surgical treatment to any of his
right eye difficulties. Cf. Caluza v. Brown, 7 Vet.App. 498
(1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table)
(in the service-connection context). Without such evidence,
this claim the claim is not well grounded. 38 U.S.C.A.
§§ 1151, 5107; 38 C.F.R. §§ 3.358, 3.800. Since the claim is
not well grounded, it must be denied. Grottveit v. Brown, 5
Vet.App. 91 (1993); Edenfield v. Brown, 8 Vet.App. 384
(1995).
Finally, although the Board has considered and disposed of
the veteran’s claim on a ground different from that of the
RO, the veteran has not been prejudiced by the Board’s
decision. This is because, in assuming that such claim was
well grounded, the RO accorded the veteran greater
consideration than this claim in fact warranted under the
circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94
(1993). To remand this case to the RO for consideration of
the issue of whether this claim is well grounded would be
pointless and, in light of the law cited supra, would not
result in a determination favorable to the veteran.
VAOPGCPREC 16-92 (O.G.C. Prec. 16-92).
The evidence is not so evenly balanced that there is doubt
regarding any material issue. 38 U.S.C.A. § 5107.
ORDER
Entitlement to compensation pursuant to 38 U.S.C.A. § 1151
for loss of visual acuity in the right eye, status post
enucleation, is denied.
ROBERT D. PHILIPP
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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